Gross v. Intratek Computer Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FREDERICK GROSS,

Plaintiff,

ORDER

-against- 22-CV-7440(GRB)(AYS)

FILED

INTRATEK COMPUTER INC., NORTHPORT VA

CLERK

MEDICAL CENTER, ROBERT ZISKIN, in his official

capacity; 1:22 pm, Jan 10, 2023

U.S. DISTRICT COURT

Defendants.

EASTERN DISTRICT OF NEW YORK

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LONG ISLAND OFFICE

GARY R. BROWN, United States District Judge:

Before the Court is the renewed application to proceed in forma pauperis filed by

Frederick Gross (“Plaintiff”), acting pro se. See Docket Entry (“DE”) 7. For the reasons that

follow, Plaintiff’s renewed application to proceed in forma pauperis is granted. However, for

the reasons that follow, the complaint is dismissed without prejudice for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).

BACKGROUND

1. Summary of the Complaint

Plaintiff’s complaint seeks to invoke this Court’s subject matter jurisdiction pursuant to

28 U.S.C. § 1332 and is brought against Intratek Computer, Inc. (“Intratek”), the Northport VA

Medical Center (“Northport VA”), and Robert Ziskin in his official capacity as an Area Manager

of the Northport VA (“Ziskin” and collectively, “Defendants”). Compl., DE 1, ¶¶ 2-4.

Plaintiff seeks relief for the alleged violation of New York Labor Law § 190. Id. ¶ 1. Plaintiff

alleges that he is a domiciliary of New York, residing in Freeport, New York. Id. ¶ 6. Intratek

is alleged to be incorporated under the laws of California and has its principal place of business

in California. Id. ¶ 10. The Northport VA is alleged to do business in Northport, New York

and Ziskin is alleged to work at the Northport VA. Plaintiff alleges that the amount in

controversy exceeds $75,000. Id. ¶ 2.

Plaintiff alleges that he was entered into an employment contract with the Defendants in

July 2020 wherein he was hired as an IT Specialist through September 22, 2023 with the

possibility of an extension through September 2024. Id. ¶ 15-16. Plaintiff alleges that he was

working at the Northport VA until January 8, 2022 when he received an e-mail from a human

resources representative at Intratek stating that he was being terminated. Id. at 18. Plaintiff

alleges that he was an employee within the meaning of NY Labor Law §190(2), that the

Defendants are employers within the meaning of NY Labor Law § 190(3), and that the

employment agreement meets the Labor Law’s definition of a contract. Id. ¶¶ 7, 9, 11, 13, and

20. Plaintiff alleges three causes of action: (1) breach of contract; (2) quantum meruit; and (3)

willful failure to pay wages pursuant to NY Labor Law § 190 et seq. for which he seeks to

recover his contracted rate of pay of $69,680 per year in addition to interest and penalties. Id.

¶¶ 34, 40-53.

LEGAL STANDARDS

The Second Circuit has established a two-step procedure wherein the district court first

considers whether plaintiff qualifies for in forma pauperis status, and then considers the merits

of the complaint under 28 U.S.C. § 1915(e)(2). Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d

Cir. 1983).

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I. In Forma Pauperis

Upon review of the renewed IFP application, the Court finds that plaintiff is qualified by

his financial status to commence this action without the prepayment of the filing fee. Therefore,

the renewed application to proceed IFP (DE 7) is granted.

II. Sufficiency of the Pleadings

As Judge Bianco summarized,

A district court is required to dismiss an in forma pauperis complaint if the action

is frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from such relief. See

28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action

as soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-

(iii).

It is axiomatic that district courts are required to read pro se complaints liberally,

see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and

to construe them “‘to raise the strongest arguments that [they] suggest [ ].’”

Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d

Cir. 2010)). Moreover, at the pleadings stage of the proceeding, the Court must

assume the truth of “all well-pleaded, nonconclusory factual allegations” in the

complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.

2010), aff’d, --- U.S. ----, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing

Ashcroft v. Iqbal, 556 U.S. 662 (2009)). However, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements . . . are

not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678 (citation omitted).

Notwithstanding a plaintiff’s pro se status, a complaint must plead sufficient facts

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678. The plausibility standard requires “more than a sheer possibility that

a defendant has acted unlawfully.” Id.; accord Wilson v. Merrill Lynch & Co.,

671 F.3d 120, 128 (2d Cir. 2011). While “detailed factual allegations” are not

required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Plaintiff’s factual allegations must also be

sufficient to give the defendant “fair notice of what the . . . claim is and the

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grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal quotation marks

and citation omitted).

Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y.

Dec. 31, 2014).

III. Subject Matter Jurisdiction

Federal subject matter jurisdiction is limited and available only when: (1) a “federal

question” is presented, 28 U.S.C. § 1331; or (2) the plaintiff and defendant are of diverse

citizenship and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a).

“[S]ubject-matter jurisdiction, because it involves the court’s power to hear a case, can never be

forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). It is long established

that courts “have an independent obligation to determine whether subject-matter jurisdiction

exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). A court

must dismiss the case where subject matter jurisdiction is lacking. Manway Constr. Co. Inc. v.

Housing Authority of City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983); see also Fed. R. Civ. P.

12(h)(3).

DISCUSSION

Here, Plaintiff alleges that this Court’s diversity jurisdiction is invoked. See Compl. ¶¶

2-3. In order to invoke diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff bears the

burden of showing that there is complete diversity of citizenship between the plaintiff and the

defendants. MLC Fishing, Inc. v. Velez, 667 F.3d 140, 141 (2d Cir. 2011) (“The burden of

demonstrating subject matter jurisdiction lies with the party asserting it . . . .”) (internal quotation

marks and citation omitted); Advani Enterprises, Inc. v. Underwriters at Lloyds, 140 F.3d 157,

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160 (2d Cir.1998) (It is well-settled that “[t]he party seeking to invoke jurisdiction under 28

U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity exist and that

diversity is complete.”) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189

(1936)); Omoniyi v. Dep’t of Homeland Sec., No. 10 CIV. 1344(DF), 2012 WL 892197, at *5

(S.D.N.Y. Mar. 13, 2012) (“Even a pro se plaintiff, however, will bear the burden of proving that

subject-matter jurisdiction exists.”) (citing Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000)).

Here, as is readily apparent, the parties are not completely diverse. Given that Plaintiff,

the Northport VA, and Ziskin are all alleged to be domiciled in New York, the diversity

requirement is not met. See Compl., ¶¶ 6, 8, 12; Palazzo ex rel. Delmage v. Corio, 232 F.3d 38,

42 (2d Cir. 2000) (for diversity jurisdiction purposes, an individual is considered a citizen of the

state of domicile, which is the state where “a person has his true fixed home . . . and to which,

whenever he is absent, he has the intention of returning.” (internal quotation marks and citation

omitted). While an individual “has but one domicile” id., a corporation is a citizen “of every

State and foreign state by which it has been incorporated and of the State or foreign state where

it has its principal place of business.” § 1332(c)(1). Thus, the Court lacks subject matter

jurisdiction under 28 U.S.C. § 1332.

In an abundance of caution and in light of Plaintiff’s pro se status, the Court also

considers whether the complaint raises a federal question such that subject matter may properly

be invoked pursuant to 28 U.S.C. § 1331. However, Plaintiff raises exclusively state law claims

for breach of contract, quantum meruit, and for violation of N.Y. Labor Labor Law § 190. In

the absence of a claim “arising under the Constitution, laws, or treaties of the United States”,

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subject matter jurisdiction does not lie in this Court.1 See 28 U.S.C. § 1331. Accordingly, the

complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(h)(3).

IV. Leave to Amend

The Second Circuit has held that “[d]istrict courts should generally not dismiss a pro se

complaint without permitting at least one opportunity to amend, but granting leave to amend is

not necessary when it would be futile.” Lamb v. Cuomo, 698 F. App’x 1, 2 (2d Cir. 2017)

(citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Where a complaint has been

dismissed for lack of subject matter jurisdiction, denial of leave to amend on the basis of futility

may be appropriate. Rahim v. Secretary, Establishment Div., Gov’t of People’s Republic of

Bangl., 481 F. App’x 18, 19 (2d Cir. 2012) (affirming district court’s dismissal of pro se

plaintiff’s complaint without leave to amend where complaint was dismissed for lack of subject

matter jurisdiction).

Here, leave to amend would be futile given that there is no basis to invoke this Court’s

subject matter jurisdiction. Accordingly, leave to amend the complaint is denied.

CONCLUSION

Based on the foregoing, plaintiff’s renewed application to proceed IFP is granted. The

complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(h)(3).

Leave to further amend the complaint is denied.

1 Insofar as Plaintiff’s claims arise under the Contract Disputes Act, 28 U.S.C. § 1346(a)(2) (“CDA”), “the CDA

gives exclusive jurisdiction to the Court of Federal Claims over contract disputes with the federal government in

excess of $10,000. Merritt v. United States, No. 5:18-CV-200, 2020 WL 13336987, at *2 (D. Vt. July 14, 2020).

Indeed, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Dept. of

the Army v. Blue Fox, 525 U.S. 255, 260 (1999) (internal quotation marks and citation omitted). Plaintiff’s failure

to show that his lawsuit invokes one of the areas where Congress has waived sovereign immunity precludes his

action against the United States in this Court.

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of the Court shall enter judgment accordingly and close this case. The Clerk

of the Court shall also mail this Order to the Plaintiff at his address of record and note such

mailing on the docket.

SO ORDERED.

/s/ Gary R. Brown

_______________________

Dated: January 10, 2023 Hon. Gary R. Brown

Central Islip, New York United States District Judge

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